Germany: Protection From Dismissal Under The German Maternity Protection Act: Confusion Continues

Two and a half years since the introduction of the Maternity Protection Act, employers and legal practitioners still face unresolved issues. This article explores them.

There is no question that the special protection against dismissal accorded to pregnant employees, women who have regrettably suffered a miscarriage, and new mothers by s17 of the German Maternity Protection Act has a useful and indispensable role in society.

Nevertheless, due to special circumstances, it may exceptionally be necessary to give notice of termination to an employee who enjoys this special protection against dismissal. In these special cases (such as the closure or partial closure of a business, threat to the employer's continued economic existence or particularly serious breaches of duty by the employee) the law allows the competent supreme state authority or a designated body to declare the termination of employment exceptionally permissible provided that it has no connection with the woman's pregnancy, birth or miscarriage.

However, s17(2) sentence 1 of the Maternity Protection Act is a blanket regulation that lacks essential clarifications. In parts, the provision is even outright misleading.

Employers frequently face the problems outlined below.

What form should the application take?

Section 17(2) sentence 1 of the Maternity Protection Act does not prescribe a specific form for the application to declare the termination admissible. Although less bureaucracy may contribute to quicker solutions, employers without legal counsel are faced with initial questions as early as the informal application. For example, it is difficult to know at the outset what information should be provided and what documents have to be submitted in connection with the application. Unfortunately, you will not always find helpful forms or declarations on the respective website of the competent authority.

Even if employers are not subject to any formal requirements, it is recommended in practice to submit the application in writing for documentation purposes. In addition, the application should contain the address of the employee and the employer, the nature of the intended termination (with immediate effect or observing the notice period) as well as the essential facts to justify the special case.

What about the decision´s form?

Section 17(2) of the Maternity Protection Act does not prescribe a specific form for the decision either, meaning that the authority has discretion to determine the form of the decision. Although a written decision may be appropriate for reasons of legal clarity, it is not mandatory. The decision must however be published pursuant to s41 of the Administrative Procedure Act.

In contrast to the approval of the Integration Office for the dismissal of a severely disabled person, which requires formal written notification pursuant to s171.2 of the Ninth Book of the German Social Code, this means the authority may declare the admissibility of a termination in no specific form, even by telephone, in the absence of a statutory formal requirement, and thus trigger the deadlines associated with this notification!

In light of this, employers are strongly advised to insist on a properly documented ruling. Particularly in the case of consent given by telephone only (although the authorities would probably only want to make use of this option in exceptional cases), it would be very complex to prove the time of notification in a possible later dispute on protection against dismissal, where the employer would have to show when they were informed of the decision and how quickly they issued the termination thereafter. The employer also bears the burden of proof that the official declaration of approval was already issued at the time of the termination.

What preparations are permissible?

Background

According to the case law of the European Court of Justice in the Paquay case, preparatory actions for an intended dismissal already may involve a risk of physical and psychological stress for a pregnant woman. In its judgment of 11 October 2007 (Case C-460/06), the ECJ considered measures to find a replacement to be a breach of the Maternity Protection Directive (92/85/EEC).

Based on this case law, the German legislator introduced s17(1) sentence 3 of the Maternity Protection Act, which declares all preparatory actions for a dismissal of a pregnant woman are not permissible. However, the transposition of this case law into national law raises some questions.

Problems

Unfortunately, the legislator did not specify what actions by the employer are to be understood as preparatory measures within the meaning of s17(1) sentence 3 of the Maternity Protection Act and how a possible declaration that the dismissal is acceptable by the authority affects them. Equally, there has been no supreme court case law to date that would facilitate the handling of the provision.

Although the question of the extent to which the European Court of Justice decision in Paquay was correctly transposed into national law at all and how s17(1) sentence 3 of the Maternity Protection Act is ultimately to be interpreted may be of great legal interest, in practice the provision only creates legal uncertainty in the implementation of terminations declared exceptionally permissible exception pursuant to s17(2) of the Maternity Protection Act.

In order to minimise any legal risks, employers should not carry out any necessary preparatory actions for a dismissal until the dismissal is declared permissible by the authorities. Here, s17(1) Sentence 3 of the Maternity Protection Act conflicts with s626 of the German Civil Code, which requires immediate action and with s102 of the German Works Constitution Act, which leaves consultation before, after or during the implementation of a necessary official procedure generally to the employer's discretion.

However, it remains completely unclear when preparatory actions for a dismissal are permissible with regard to s17 of the Maternity Protection Act. In accordance with the wording of s17(1) sentence 3 of the Maternity Protection Act, a works council hearing always represents an inadmissible preparatory action for a dismissal. Section 17(1) sentence 3 of the Maternity Protection Act also conflicts with s178(2) sentence 1 of the Ninth Book of the German Social Code, which stipulates that the employer has an immediate duty to inform the Representative Body for Severely Disabled People in all matters concerning severely disabled people. This means there is a legal obligation for employers to inform the representative body for severely disabled individuals before submitting an application to the competent supreme state authority. Here the two legal regulations conflict with each other.

Pursuant to the meaning and purpose of s17 of the Maternity Protection Act, it should be obvious that the declaration of permissibility must 'cure' all prohibited preparatory actions, but unfortunately there is no clear regulation in the law on this.

Conclusion

Section 17 of the Maternity Protection Act requires (further) legislative overhaul. It would be desirable if the legislator were to create clear and comprehensible regulations which would actually grant employers the (formally legally secure) possibility of terminating an employee otherwise protected by the act in exceptional circumstances and not, as has been the case up to now, contain numerous stumbling blocks.

Originally published 18 August 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.